Citation Nr: 1823711
Decision Date: 04/19/18 Archive Date: 04/26/18
DOCKET NO. 14-34 204 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Entitlement to an increased rating for a service-connected low back disability, currently rated at 20 percent disabled.
2. Entitlement to a compensable rating for bilateral hearing loss.
3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. G. Perkins, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October1976 to January 1977 and from March 1977 to August 1994.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2013 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA).
The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2017. A transcript of that hearing is associated with the file.
Testimony at the November 2017 hearing raised the issue of TDIU as part of the claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues before the Board are as noted on the title page.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran testified that his service-connected bilateral hearing loss disability and low back disability have worsened since his last examinations in January 2013. Thus, a new examination is necessary.
Additionally, the Veteran testified that his disability has prevented him from obtaining gainful employment. On remand, he should be asked to complete a VA Form 21-8940 (Application for TDIU) and provide related employment details. The TDIU claim is inextricably intertwined with the increased rating claims and adjudication of that issue will be deferred until the issues of increased rating are decided.
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information.
2. Schedule the Veteran for an appropriate VA examination to assess the severity of the service-connected lumbar spine disability. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The examiner must describe all impairment of the lumbar spine disability, including neurological. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible.
(a) The examinations must address active and passive motion, weight-bearing and nonweight-bearing information, as required by 38 C.F.R. § 4.59. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
(b) The examiner should specifically ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided.
If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made, to include whether there are additional tests or information that might be sufficient to estimate such additional functional loss during flares.
3. Schedule the Veteran for an audiological examination to determine the nature, extent, and etiology of his bilateral hearing loss. The entire claims file should be made available to and be reviewed by the examiner in conjunction with the examination.
4. Upon completion of the above, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the claimant should be furnished a supplemental statement of the case (SSOC). The claimant should be given the opportunity to respond thereto.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
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M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).